Vaishna Vinod, D/o. Kalamalini v. Employees State Insurance Corporation
2018-08-06
DEVAN RAMACHANDRAN, P.R.RAMACHANDRA MENON
body2018
DigiLaw.ai
JUDGMENT : Devan Ramachandran, J. This phalanx of appeals, over sixty five of them, call attention to the 'Admission Policy' and the procedure formulated by the Employees State Insurance Corporation ('the Corporation' for short), which according to them, has obtained the approval of the Government of India, for admission to the Medical/Dental Colleges under the Corporation and to some specified Government Medical Colleges, under a quota called the 'Insured Persons Quota'. 2. The various petitioners in the writ petitions, from which these appeals have arisen, either claim to be Insured Persons under the Employees State Insurance Act, 1948 ('the Act' for brevity) or their children and seek admission to the Medical/Dental Colleges under the 'Insured Persons Quota'. 3. While in some of the writ petitions, the challenge is impelled against the Admission Policy published by the Corporation this year on the assertion that the said Policy is contra legis, ultra vires and contrary to the mandate of the Act, in certain others, the petitioners claim the benefit of declarations made by this Court in the judgment reported as Bindu Radhakrishnan v. Employees State Insurance Corporation, New Delhi and Others ( 2017 (4) KHC 876 ), wherein the Admission Policy for the last year was considered by this Court. 4. We will advert to the findings in this judgment later, after we indite the constitutive facts and legal issues involved in these appeals. 5. Before we enter into the arena of controversy, we think it will be apposite to run through the provisions of the Employees State Insurance Act, 1948 ('the Act' for brevity) as a prelude. 6. The Act was introduced by the Government of India for the laudable purpose of ensuring health insurance for industrial workers and it envisages a method of compulsory State Insurance, providing for benefits to workers and employees, in the event of sickness, maternity and employment injury, who are employed in or in connection with the work in Factories other than seasonal factories. 7. The definitions of certain specific phrases, as offered by the Act, will also be required to be seen before we go forward, since these have a decisive impact on the way the impugned Policy/Admission procedure, formulated by the Corporation, will have to be forensically analysed. 8.
7. The definitions of certain specific phrases, as offered by the Act, will also be required to be seen before we go forward, since these have a decisive impact on the way the impugned Policy/Admission procedure, formulated by the Corporation, will have to be forensically analysed. 8. An 'employee' is defined under Section 2(9) of the Act as under : “(9) “employee” means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and - (i) who is directly employed by the principal employer, on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere; or (ii) who is employed by or through an immediate employer, on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment; or (iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract or service; [and includes any person employed for wages on any work connected with the administration of the factory or establishment or any part, department or branch thereof or with the purchase of raw materials for, or the distribution or sale of the products of, the factory or establishment] [or any person engaged as apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961), [and includes such person engaged as apprentice whose training period is extended to any length of time] but does not include]- (a) any member of [the Indian] naval, military or air forces; or (b) any person so employed whose wages (excluding remuneration for overtime work) exceed [such wages as may be prescribed by the Central Government] a month: Provided that an employee whose wages (excluding remuneration for overtime work) exceed [such wages as may be prescribed by the Central Government] at any time after (and not before) the beginning of the contribution period, shall continue to be an employee until the end of that period;] It is thus clear that the definition takes in every person employed for wages or in connection with the work of a factory or an establishment to which the Act applies but with a caveat that such persons, whose wages exceed the maximum limit prescribed by the Central Government from time to time, will not be entitled to the benefits under the Act.
9. After saying so, Section 2(13A) of the Act defines 'Insurable Employment' as under : “Insurable employment” means an employment in a factory or establishment to which this Act applies.” Thereafter, Section 2(14) goes on to define 'Insured Persons' in the following manner: “Insured person” means a person who is or was an employee in respect of whom contributions are or were payable under this Act and who is by reason thereof, entitled to any of the benefits provided by this Act.” 10. Even though the definitional amplitude of the aforementioned phrases are so specified by the Statute, when the Admission Policy for the year 2018-19 was prepared by the Corporation, they have chosen to clothe two of the afore phrases, namely (a) 'Continuous Insurable Employment' and (b) 'Insured Person' with a different definitional habiliment in clauses 4.5 and 8 respectively in the Annexure to the Policy, which, in fact, is the proximate cause for the dialectical polemic between the Corporation on one side and the writ petitioners on the other. 11. We notice that in the impugned Admission Policy, the methodology of filling up of the 'Insured Persons Quota' has been described in clause 4 of the Annexure thereof and the enumerated criteria, for being eligible as an 'Insured Person', entitled to have their ward admitted to the Insured Persons Quota, has been itemised in clause 8 of the Annexure thereto. 12. Under the head 'Methodology of filling up of Insured Persons Quota' in clause 4, it is provided that the candidates can respond to the advertisement issued by the Corporation and apply for admission under the said quota under three different groups shown as Group I, Group II and Group III. The functional objective behind providing three groups as afore is available from clause 4.7 of the Annexure to the Policy, wherein it prescribes that candidates included in Group I would be first considered for allotment of seats; then candidates in Group II and finally the candidates included in Group III. Obviously, therefore, those candidates who fall in group I has the largest chance of securing allotment of seats under the said Policy. 13.
Obviously, therefore, those candidates who fall in group I has the largest chance of securing allotment of seats under the said Policy. 13. The afore three groups provided in the Admission Policy are thereafter operationally defined under clause 4.5 of the Annexure to the Admission Policy, with Group I to include those 'Insured Persons' who have been in 'Continuous Insurable Employment' for a minimum period of five years; while Group II are shown to include those Insured Persons who have a minimum period of four years 'Continuous Insurable Employment' and finally Group III is stipulated to take in Insured Persons with a minimum of three years of 'Continuous Insurable Employment', with a further precondition that such periods of five, four or three years should be as on and immediately preceding the 1st January of the year of admission, which date effectively is 01.01.2018. 14. After providing as above, clause 4.5 of the Annexure to the impugned Admission Policy then proceeds to define 'Continuous Insurable Employment' to mean that the contributions in respect of that employee ought to have been paid/payable for not less than 78 days in all the nine or seven or five contribution periods as are applicable to Groups I, II and III respectively, immediately preceding 1st January of the year of admission and a table indicating this is also added under the said clause. 15. Therefore, under the extant Admission Policy, for an employee to be included in Group I, he/she should have made contributions for nine contribution periods immediately preceding the 1st January with limited relaxation that if, for any reason, he/she is unable to satisfy the requirement of the above 78 days on account of exigencies beyond his/her control, he/she would get the benefit of an additional one year to be reckoned, which has been shown as a starred category in the table under the said clause. It is the same modus that is adopted for the purpose of Groups II and III, with the only difference being that the contribution periods are shown as seven and five respectively, with the same limited relaxation, as mentioned in the case of Group I, of reckoning of one additional year in both these categories. 16.
It is the same modus that is adopted for the purpose of Groups II and III, with the only difference being that the contribution periods are shown as seven and five respectively, with the same limited relaxation, as mentioned in the case of Group I, of reckoning of one additional year in both these categories. 16. The writ petitioners, as we have already seen above, are either insured persons or their wards and some of them challenge the definitions given to the phrase 'Continuous Insurable Employment' under the Admission Policy as also the requirement that an 'Insured Person', for being eligible for admission to the quota, ought to have paid a minimum of 78 days contribution in the nine or seven or five contribution periods, depending upon the group to which they seek inclusion, as the case may be, immediately preceding the 1st January of the year of admission; While others seek that the declaration made by this Court with respect to last year's Admission Policy, which had similar provisions, as recorded in Bindu Radhakrishnan (supra) be made applicable to the Admission Policy impugned herein. 17. This, in crux, is the bone of contention between the parties that engages our attention at the first instance. We are also, however, cognizant that there are certain other corollary issues, relating to the same clauses, with respect to the 'Date of Entry into the Employees State Insurance Scheme' and such other, which we will deal with as we go further in this judgment. 18. We have heard Sri. Sandesh Raja, the learned Standing Counsel for the Corporation and its functionaries; Sri. Bechu Kurian Thomas, learned Senior Counsel, assisted by Sri. Paul Jacob, Sri. D. Kishore, Sri. K.P. Sudheer, Sri. Arun Babu, Sri. Jose Abraham, Sri. P. Ramakrishnan, Sri. Sajeev Kumar K. Gopal, Sri. Sadchith P.Kurup, Sri. Jeswin P. Varghese, Sri. Soman P. Paul, Smt. M.R. Jayalatha, Sri. R. Reji, Sri. Vijai Mathews, Sri. V. Madhusudhanan, Sri. B. Mohanlal, Sri. M. Sasindran, Sri. Gopakumar R. Thaliyal, Sri. S. Sreekumar, Sri. Ajit G. Anjarlekar, Sri. Anchal C. Vijayan, Sri. Thomas Abraham, Sri. T.B. Hood and Sri. Millu Dandapani, learned counsel appearing for the various appellants, Sri. Nagaresh, the learned Assistant Solicitor General appearing for the Director General of Health Services, Government of India and the learned Government Pleader appearing for the State of Kerala and its officials. 19.
S. Sreekumar, Sri. Ajit G. Anjarlekar, Sri. Anchal C. Vijayan, Sri. Thomas Abraham, Sri. T.B. Hood and Sri. Millu Dandapani, learned counsel appearing for the various appellants, Sri. Nagaresh, the learned Assistant Solicitor General appearing for the Director General of Health Services, Government of India and the learned Government Pleader appearing for the State of Kerala and its officials. 19. The primary question, which we think is at the root of all the controversies and disputations in these cases, is whether the Corporation could have adopted a different definition to the phrases 'Insured Person' or 'Insurable Employment', contrary or different to the definitions of these phrases in the Act. 20. It is nobody's case that the Corporation is an organisation beyond the ambit of the Act. In fact, Sri. Sandesh Raja, the learned Standing Counsel for the Corporation concedes unequivocally that the parturition of the Corporation can only be traced to the Act and nothing else. Therefore, the axiomatic question that then arises is whether the Corporation can act in any manner which is not expressly sanctioned under the Act. We are certain that it would require not much of an expatiation to lead us to an answer to this and to find it to be obviously to the negative. 21. In other words, when the Corporation acts, it can only do so under the provisions of the Act, since it has no other source for its jurisdiction or power except that which are vested in it by the provisions of the Act itself. Syllogistically, therefore, de hors the Act, the Corporation is denuded of its very existence and, therefore, any action of its, beyond the mandate of the Act, would hazard the risk of such action being found to be either in colourable exercise of power or being vitiated on account of total absence of jurisdiction. 22. When we exordially conclude so, the ensuing question is whether the Corporation could have formulated an Admission Policy in a manner contrary to the very mandate of the Act. There again, we are, prima facie, of the opinion that it could not have done so. However, before we make an affirmative conclusion, the submissions made on behalf of the Corporation will first require our careful scrutiny, since interestingly, its learned Standing Counsel has a different take on this issue. 23. The learned Standing Counsel for the Corporation, Sri.
There again, we are, prima facie, of the opinion that it could not have done so. However, before we make an affirmative conclusion, the submissions made on behalf of the Corporation will first require our careful scrutiny, since interestingly, its learned Standing Counsel has a different take on this issue. 23. The learned Standing Counsel for the Corporation, Sri. Sandesh Raja, begins his submissions by avouching that the formulation of an Admission Policy, for admission of the wards of Insured Persons to the MBBS/BDS courses in the various colleges under the Corporation, is not something that is expressly sanctioned by any of the provisions of the Act. According to him, this is an additional benefit which is not provided specifically by the Act and therefore, that the Corporation is competent and justified in postulating a policy independently for the purpose of such admission, without any reference being made to the enabling Statute. When we heard the learned Standing Counsel as afore, we asked him particularly whether, his afore argument being accepted, the Corporation would be, in-principle, able to extend the benefit under the Admission Policy even to those employees whose salaries are above the maximum limit provided under the Act and his answer to this unhesitatingly was to the negative. He conceded that no benefit can be offered by the Corporation to anybody who draws a salary above the maximum limit as is prescribed by the Act and therefore, it becomes ineluctable that, looking at it from any angle, the Corporation can only conduct itself and derive powers for its functions from the provisions of the Act itself. 24. Our above opinion becomes fortified from the way the Admission Policy itself is worded. The Policy starts by saying that the admissions to undergraduate MBBS/BDS courses in the Medical Education Institutions under the Corporation and certain other Government Institutions will also be made from the wards of Insured Persons, by reserving for them a quota called the 'Insured Persons Quota', culled out from the available seats, after allocation to the All India and State Government quotas. It, thereafter, goes to say that the wards of Insured Persons, who meet the laid-down eligibility criteria and who clear the National Eligibility-cum-Entrance Test (NEET), can apply for the seats under the quota reserved for them for the academic session 2018-19.
It, thereafter, goes to say that the wards of Insured Persons, who meet the laid-down eligibility criteria and who clear the National Eligibility-cum-Entrance Test (NEET), can apply for the seats under the quota reserved for them for the academic session 2018-19. It asserts in the Policy that the provisions have obtained the approval of the Government of India as also that of the Corporation. 25. Once it thus becomes indubitable that the quota to which the Admission Policy relates is the 'Insured Persons Quota', it then does not require any further effort to understand that the benefits offered under the Scheme is to the Insured Person and no one else. We say this affirmatively for the reasons that from the submissions of the learned Standing Counsel for the Corporation, we gather a suspicion that suggestively he maintains that the impugned Admission Policy is not for the benefit of Insured Person, but for their wards and therefore, that the Corporation is entitled to formulate a policy even beyond the ambit of the Act. This evocative stand, which though was not expressly stated, cannot appeal to us for more reasons than one. For the first, if the intention of the Corporation was to offer benefits to someone else other than the Insured Persons, who are the sole beneficiaries under the Act, then they ought to have brought out a specified Scheme, after notification in the Official Gazette as is provided under Chapter VA of the Act, which enables them to evolve a scheme for 'Other Beneficiaries'. The Admission Policy concededly being not a scheme prepared under Section 73B of the Act or notified therein, can only, therefore, be at the best a decision taken by the Corporation under the provisions of the Act, so as to provide an abscititious benefit to the Insured Persons. 26. Once our opinion on this is thus consummated with the virtual admission of the Corporation, then we revert to the issue whether the Corporation could have formulated an Admission Policy contrary or different to the purpose and the indentment of the Act. This is where the definition given to the words 'Insured Persons' and 'Continuous Insurable Employment' under the Admission Policy come into crucial focus. 27.
This is where the definition given to the words 'Insured Persons' and 'Continuous Insurable Employment' under the Admission Policy come into crucial focus. 27. As we have already indicated above, if the impugned Admission Policy had adopted the definitions of these two phrases as is provided under the Act, then there would have obtained no locus for anyone to challenge the same, since the Corporation can only conduct itself as per the Act. However, in the extant impugned Admission Policy, this is not what the Corporation has done. The Corporation has defined the word 'Continuous Insurable Employment' in clause 4.5 as under : “The continuous insurable employment of five years herein means that the contribution in respect of him/her were paid/payable for not less than 78 days in all the nine contribution periods (CPs) immediately preceding the above 1st January and shown in the table below.” This is obviously contrary to the definition of the phrase 'Insurable employment' under the Act, but appears to be one adopted by the Corporation singularly for the purpose of this Policy alone, because 'Insurable Employment' under the Act only means an employment in a factory or establishment to which the Act applies without reference to the contribution to be made by the employer. 28. In other words, under the Act a person can be in 'Insurable Employment' even though he is not liable to make contribution, including for the reason that he has gone outside the ameliorative cover of the Act on account of his salary having exceeded the statutorily fixed maximum limit. However, the impugned Policy clearly intends to restrict this and makes it additionally incumbent that the 'Insured Person' would get the benefit under it only if contributions are paid on his/her behalf continuously for the relevant period shown therein. 29. After so defining 'Continuous Insurable Employment' as afore in clause 4.5, the policy attempts further to define 'Insured Persons' in clause 8.
29. After so defining 'Continuous Insurable Employment' as afore in clause 4.5, the policy attempts further to define 'Insured Persons' in clause 8. Since many of the contentions of the parties are edificed on this clause, we deem it idoneous to extract it in its full as under: “Insured person for the purpose of availing benefit of Insured Persons (IPs) Quota for his/her wards shall be, as under- (a) “The 'Insured Person' shall be an 'employee' as defined in the ESI Act; and he/she should have been in continuous insurable employment for a minimum period of five/four/ three years as on, and immediately preceding the 1st January of the year of admission; and contribution in respect of him/her were paid/payable for not less than 78 days in all the 9/7/5 contribution periods immediately preceding 1st January of the year of admission with the proviso that the return of contribution as provided under Section 44 of the ESI Act read with Regulation 26(a) of the ESI (General) Regulations be filed within 42 days of termination of contribution period to which it relates, during this five/four/three year period. However, if the IP does not fulfill the requirement of minimum 78 days of paid or payable contribution as above in the specified CPs on account of exigency beyond control of IP, 78 days of paid/payable contribution shall be allowed to reckon from among the 02* contribution periods shown in the tables in para (4.5) during the five/four/three year period for determining eligibility. The five/four/three year period along with extended period of one year for the purpose eligibility should lie between recorded date of entry into the scheme and critical date for eligibility, i.e. 1st January of the year of admission. (b) The insured person for the said purpose having five/four/three years of continuous insurable employment shall be grouped as Group-I/II/III respectively. (c) The date of entry into the scheme for calculating the minimum continuous period would be the date of registration available in the IP database of the ESIC as uploaded by the employer in the Web Portal of ESIC. (d) In case there is default or delay on the part of the employer in getting itself or the concerned employee covered under the Scheme, the ESIC will not be responsible for the said default or delay.
(d) In case there is default or delay on the part of the employer in getting itself or the concerned employee covered under the Scheme, the ESIC will not be responsible for the said default or delay. (e) Any period prior to the date of entry described above would not be counted towards the five/four/three year period of eligibility for the purpose of availing benefit of Insured Persons (IPs) Quota. (f) The combined earnings of the IP and spouse (parents of the applicant) should not exceed Rs.06 (six) lakh per annum. Note: The 'Competent Authority' to issue the income certificate are specified as under : * District Magistrate/Additional Magistrate/1st Class Stipendiary Magistrate/Sub-Divisional Magistrate/Taluk Magistrate/Executive Magistrate/Extra Assistant Commissioner (not below the rank of 1st Class Stipendiary Magistrate) * Chief Presidency Magistrate/Additional Chief Presidency Magistrate/Presidency Magistrate. * Revenue Officer not below rank of Tahsildar. * Sub-Divisional Officer of the area where the candidate and/or his/her family resides. (g) All other words and expressions used but not defined/explained in this Admission Policy shall have the meanings respectively assigned to them in the ESI Act 1948, ESI (Central) Rules, 1950 and the ESI (General) Regulations, 1950.” 30. When one reads clause 8 as above, it would first give an impression that the phrase 'Continuous Insurable Employment' therein should derive its meaning from the definition given to it in clause 4.5. However, in clause 8, an additional condition is again inserted that, apart from the fact that a 'Insured Person' should be an 'employee' as per the Act and in 'Continuous Insurable Employment' for the relevant period, he/she should make payment of the contribution for not less than 78 days in all the nine or seven or five periods, as the case may be, immediately preceding the 1st January of the year of admission. 31. We fail to understand how one can harmonise the provisions of clauses 4.5 and 8 of the Annexure to the Admission Policy in the manner it has been now drafted. While clause 4.5 defines 'Continuous Insurable Employment' to mean a period during which the contributions were paid continuously, in clause 8, there is no such definition to the phrase 'Continuous Insurable Employment', but an additional criterion is provided therein that contributions for the relevant periods indicated therein, immediately preceding the 1st January, 2018, ought to have been paid by the Insured Persons to obtain the benefit under the policy. 32.
32. Therefore, it is inescapable that the intention of the Corporation, while incorporating these provisions, was to create a classification of employees, who qualify under certain specified criterion, for being able to enjoy the benefits under the Quota, while keeping away the others. We say this because, going by clause 8 afore, we find some reason and justification in the Policy to the extent to which it mandates that the Insured Person must be an 'employee' as defined by the Act and that he/she should have 'Continuous Insurable Employment' for certain minimum periods as on and immediately preceding the 1st January, 2018. 33. We say that there is some functional justification in adopting these two criteria because, by mandating that only the wards of those 'Insured persons' who are 'employees' as defined under the Act, which is to say that those persons who draw salary below the maximum statutory limit under the Act as on the date of the notification for admission to the quota, the benefits become reserved to 'employees under the Act', while excluding those who are not so, since by drawing a higher salary as on 1st January, 2018, they are in any case excluded from all benefits under the Act itself. Further, by providing that a minimum 'Continuous Insurable Employment' should have been served by an employee/Insured Person, it operates as an incentive to such persons with longer service, in exclusion to those who have lesser periods of service and employment. 34. The afore two criterion in clause 8 are luculently, therefore, in tune with the statutory frame work and the classification of employees obtained by implementation of these two qualifications is backed by an intelligible differentia and has a clear nexus to the objective of providing an incentive to an 'employee' who has been in relatively longer period of 'Insurable Employment'. However, it is the incorporation of an additional criterion, that the contribution for 78 days in all the relevant contribution periods, immediately preceding the 1st January of the year of admission, has been paid or is payable by the 'Insured Person', presents a real legal problem, since it will enjoin the exclusion of several otherwise eligible 'Insured Persons' for no fault of theirs and for reasons that are beyond them. 35.
35. For instance, there are cases in this batch, in which an employee has gone out of the contribution obligation during the relevant period on account of the fact that his income had exceeded the maximum limit as prescribed under the Statute but was re-inducted when the Act was amended, increasing the maximum limit of income. This is pertinent because, in the year 2010, the Act was amended to peg the maximum eligible salary, for being reckoned as an 'employee' under the Act, at Rs.15,000/-, which was thereafter enhanced in the year 2017 to be Rs.21,000/-. Inevitably, therefore, an Insured Person who was enjoying a salary between Rs.15,000/-and Rs.21,000/-during the period from 2010 to 2017 cannot be statutorily construed as an 'employee' under the Act but would still be in 'Continuous Insurable Employment' as reckoned under Section 2(13A) of the Act. Hence, going by clause 8 of the Admission Policy, if it had provided solely that for availing the benefits under it, the Insured Person has to be an 'employee' under the Act and that he should be in 'Continuous Insurable Employment' for the relevant period immediately preceding 1st of January, 2018, there would have been no disquiet or cause for the various petitioners to litigate. It is on account of the addition of the third criterion, that an employee ought to have paid contribution or that such contribution was payable continuously for the prescribed periods immediately preceding 1st January, 2018, that has fanned the embers of dissension in these cases. 36. A resolution of the above issues would primarily depend upon the answer to whether the Corporation can formulate a policy divorced of the provisions of the Act. Even though Sri. Sandesh Raja, the learned Standing Counsel for the Corporation concedes that while the Corporation acts in effectuation of the purposes under the Act, it cannot do so, he vehemently maintains that the impugned Admission Policy is one that is created for a purpose beyond that in the Act, being exclusively for the purpose of admission of wards of certain specified categories of Insured Persons to the MBBS/BDS courses in the Institutions under it and therefore, that the Corporation can classify the Insured Persons by adopting any yardstick it chooses. 37.
37. It now, therefore, becomes incumbent for us to examine the purpose behind the Admission Policy, before we can finalise our opinion on the specific issues raised in these appeals. 38. The benefits under the Act are enumerated under Section 46 thereof, one of which is to provide medical treatment for the dependents of the Insured Persons. The purposes of the Act is shown in seriation under Section 28, where under the establishment and maintenance of hospitals, dispensaries and other institutions and providing medical and other ancillary services for the benefit of Insured Persons or to their families is elaborated as being one of the primary ones. The Act then reiterates this acme purpose by providing, under Section 59B thereof, that the Corporation may establish Medical Colleges, Nursing Colleges and Training Institutes for its paramedical and other employees with a view to improve the quality of services provided under the ESI Scheme. 39. On a combined reading of these provisions, it becomes irrefragible that the attempt of the Corporation to provide for an 'Insured Persons Quota' for admission to the colleges administered by it, is certainly to ensure that they obtain quality education for the wards of the Insured Persons in terms of the powers acquiesced to them under Section 59B of the Act and that this is only an ancillary objective to the larger object of establishing medical institutions and to improve the quality of services provided under the ESI Scheme. It, therefore, goes without the requirement for restatement that though the de facto benefit eventually will be to the wards of the Insured Persons, the de-jure purpose of the quota is to improve the quality of services offered by the Corporation under the ESI Scheme, by obtaining in future the services of the wards of Insured persons for themselves, by training them in some of the foremost Medical institutions and that too at the fees fixed for Government seats. 40. In that perspective, when we are persuaded to the only possible view that the Corporation has adopted the impugned Admission Policy for purposes inviolably referable to those postulated under the Act, we deem fully justified to conclude that it could have acted only and wholly in conformity with the Act and its provisions, including the definitions given by it to the phrases 'Insured Persons' and 'Continuous Insurable Employment'.
Exigently, the definition in clause 4.5 of the Policy of the phrase 'Continuous Insurable employment' being contrary to the definition of 'Insurable employment' in Section 2(13A), it cannot obtain our favour and deserves to be struck down as being ultra vires of the Act and we declare that the said phrase be reckoned only in the manner as defined in the Act. The only possible consequential definition, to the three groups, namely, Group I, Group II and Group III, will thus stand reassigned as having five, four and three years 'continuous Insurable Employment', as defined in Section 2(13A) of the Act, respectively, immediately preceding the 1st of January of the year of admission. 41. That then takes us to the critical examination of clause 8 of the Annexure to the Admission Policy. This clause, as we have already seen above, incorporates the mandatory criteria, the possession of which alone would make an 'Insured Person' eligible for being issued with the 'Ward of Insured Person' Certificate, which would entitle his child to apply for and obtain admission under the Quota. 42. The primary criteria under sub-clause (a) of clause 8 are that for a ward to be entitled to the benefit of admission in the Quota, the Insured person has to be : (a) An employee as defined by the Act. (b) In Continuous Insurable Employment for five, four or three years immediately preceding the 1st January of the year of admission. (c) a person who has paid contribution or is liable to pay contribution for nine or seven or five contribution periods, depending upon the group to which he/she is entitled, immediately preceding the first day of January of the year of admission. 43. Quad hoc the first and second criteria afore, we are in affirmation of the same, as we have already opined in paragraph 33 above, but we are not in approval of the third one afore for the reasons that we will presently state. 44. The fundamental purposes behind the Act have been spoken about several times by the Hon'ble Supreme Court in its various judgments.
44. The fundamental purposes behind the Act have been spoken about several times by the Hon'ble Supreme Court in its various judgments. The words of the Hon'ble Court in B.M. Lakshmanamurthy v. Employees' State Insurance Corporation, Bangalore ( (1974) 4 SCC 365 ) would guide and illuminate the path to be followed by us herein and for the purpose of being read fully, we extract paragraphs 6 and 19 of the said judgment as under: “6. The Act, as it appears from the preamble, is passed “to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto.” S.2 contains the definitions. By S.2(4) “contribution” means the sum of money payable to the Corporation by the principal employer in respect of an employee and includes any amount payable by or on behalf of the employee in accordance with the provisions of this Act”. By S.2(9) “employee” means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and - (i) who is directly employed by principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere; or (ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment; xxxx xxxx xxxx By S.2(12) “factory” means any premises including the precincts thereof whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve month, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on but does not include a mine subject to the operation of the Mines Act, 1952 or a railway running shed”. xxxx xxxx xxxx 19.
xxxx xxxx xxxx 19. The Act is thus a beneficial piece of social security legislation in the interest of labour in factories at the first instance and with power to extend to other establishments. Provisions of the Act will have to be construed with that end in view to promote the scheme and avoid the mischief. From some of the material provisions set out above, the underlying aim of the Act is to insure the employees against various risks to their life, health and well being and the charge is upon the principal employer even though he may get his usual work done through an intermediary, who is described in the Act as “immediate employer”. Any dispute between the principal employer and the immediate employer is to be settled between themselves, de hors, the employees and the Act charge the principal employer with the liability to pay the contribution not only of its own but also that of the employees subject to his right to deduct the employee's contribution from their wages under S.40(2) of the Act. There is a quicker mode of recovery as arrears of land revenue under S.45B and 73D. Chapter VA provides for transitory provisions and by S.73A every principal employer shall have to pay a special contribution in lieu of the employer's contribution payable under Chapter IV. Adjudication of all kinds of specified disputes are also intended to be expeditiously disposed of by the court constituted under S.74. Such disputes include a dispute between a principal employer and an immediate employer as noticed earlier. Civil Courts' jurisdiction is barred in respect of matters specified in the Act. There in only one special type of appeal to the High Court and that also in a restricted form. The Act insists on compliance with its provisions on pain of penalties and the contributions due to the Corporation have priority over other debts.” 45. These cardinal principles have been followed by the Hon'ble Supreme Court in M/s.Harihar Polyfibers v. The Regional Director, E.S.I. Corporation ( (1984) 4 SCC 324 ) and Whirlpool of India Ltd. v. ESI Corporation ( (2000) 3 SCC 185 ) and several others. 46. Therefore, our evaluation of the singular legal issues in these matters would also have to be circumscribed by the principles enunciated by the Hon'ble Supreme Court. 47.
46. Therefore, our evaluation of the singular legal issues in these matters would also have to be circumscribed by the principles enunciated by the Hon'ble Supreme Court. 47. As is beyond doubt or contest, the intent of the provisions of the Act is primarily and fundamentally to ameliorate and to offer succor to the 'employees' under the Act. The Act makes no distinction or classification among the 'employees' and hence every person who draws salary below the statutorily fixed maximum limit would be entitled to be reckoned as one class and to be construed as 'Insured Person', subject only to the pre-condition that he/she shall be admitted to the ESI Scheme as per the procedure under the Act. 48. The above being so, when one reads between the lines of the impugned Admission Policy, it seems to strive hard to create an artificial classification between the employees/ Insured persons on the criterion of having paid contribution or being liable to pay contribution. This criterion is not one sanctioned by the Act and it, therefore, defies logic as to why the Corporation has chosen it necessary to classify the 'Insured Persons' into two broad categories - one category of persons who have paid contribution for nine or seven or five contribution periods immediately preceding 1st of January 2018 and the other who have not or have not been statutorily permitted to make such contribution. 49. When the impugned Admission Policy adopts criteria for classification not expressly enabled by the Act, the onus of showing and establishing the differentia behind such classification and the purpose which is intended to be achieved by it, is fully on the Corporation. However, inexplicably, neither in the impugned Admission Policy or in the counter pleadings before us have the Corporation even attempted to do so, much less establish the differentia for and the purpose of such classification. The submission of Sri. Sandesh Raja to this is also as recorded earlier, that the Corporation has evolved the Policy beyond the provisions of the Act and therefore, that it is entitled to adopt any yardstick and impose any criterion. Since, we have already answered this contentions of the Corporation to the negative, it is needless to say that it fails in this juncture also. 50. Sri.
Since, we have already answered this contentions of the Corporation to the negative, it is needless to say that it fails in this juncture also. 50. Sri. Sandesh Raja, thereupon took a rather tangential stand and asserted before us that the Admission policy evolved by the Corporation for the previous years, which had analogous provisions, have all found approval from this Court. He cites in support of these submissions the judgments of this Court in Director General, ESIc, New Delhi and Others v. Jemin Elizabeth Mathew and Others ( 2015 (1) KLT 328 ), Neha K.J. v. Employees State Insurance Corporation, New Delhi and Others (W.A.No.1993/2016), Balachandran K.R. and another v. Employees State Insurance Corporation, New Delhi and Others (W.A.No.1992/2016) and Bindu Radhakrishnan (supra). 51. We have examined the above cited judgments very closely but find that, contrary to the assertions of the Corporation, the vires of the Policy had not been challenged in any of the cases involved therein. This Court had, in all the afore judgments, been only called upon to interpret the then available Admission Policies and that was all that was done therein one way or the other. This is not the case herein. We are called upon, at least in some of the matters, to decide the vires of the Policy and we, therefore, cannot stop by merely interpreting the clauses of the Policy, as was done in the afore-cited decisions. The ambit of the proceedings before us is much wider than in the cases involved in the above cited judgments and the Corporation, therefore, is obligated to impress upon us the legitimacy of the impugned Policy from the touch-stone of the Act. We, therefore, will be justified in not feeling fettered or manacled by the conclusions in the judgments cited by Sri. Sandesh Raja. 52. That said, in fact, Bindu Radhakrishnan (supra) is a judgment, which is, interestingly, being relied upon by some of the writ petitioners also.
We, therefore, will be justified in not feeling fettered or manacled by the conclusions in the judgments cited by Sri. Sandesh Raja. 52. That said, in fact, Bindu Radhakrishnan (supra) is a judgment, which is, interestingly, being relied upon by some of the writ petitioners also. This is because, when the Division Bench considered the interpretation therein to be given to a criterion similar to that found in clause 8 of the impugned Policy herein, with respect to last year's Admission Policy, it is declared that the requirement to have paid contribution continuously for nine or seven or five contribution periods would only mean that such blocks of contribution ought to have been made any time during the Insurable Employment of the Insured Person and need not be the block of period ending with the 1st of January of the year of admission. This interpretation of the clause in the last year's policy was adopted by the Court, because, contrary to this year's Policy, it was not mandated that the relevant block periods of contribution has to be immediately prior to the 1st of January of 2017. 53. It is presumably, therefore, which fact is virtually admitted by Sri. Sandesh Raja also, that the Corporation, while finalising this year's, policy added the words 'immediately proceeding' in clauses 8(a) and 4.5, so as to hammer it in, that an eligible 'Insured Person' will have to satisfy the continuous contribution criterion, in the applicable contribution periods, not merely any time during his/her employment, but 'immediately preceding' the 1st of January, 2018. Sri Sandesh Raja, in the above said background asserts that, therefore, the conclusions and holdings of this Court in Bindu Radhakrishnan (supra) have no relevance to the impugned Policy, it being totally different to the last year's Policy. 54. Here, we find some reason to be with Sri. Sandesh Raja and we are also of the view that Bindu Radhakrishnan (supra) can have no application in the assessment and evaluation of this year's Admission Policy, impugned herein because, the terms of this year's policy are completely different from that which was noticed by the Bench therein.
54. Here, we find some reason to be with Sri. Sandesh Raja and we are also of the view that Bindu Radhakrishnan (supra) can have no application in the assessment and evaluation of this year's Admission Policy, impugned herein because, the terms of this year's policy are completely different from that which was noticed by the Bench therein. Add to this, the fact that in Bindu Radhakrishnan (supra) there was no challenge to the validity of the provisions of the policy involved therein would dissuade us from relying on the findings therein and to answer the specific contests raised before us with respect to the validity of clauses 4.5 and 8 of the Annexure to the impugned Admission Policy. We, therefore, now move on. 55. Our view regarding clause 4.5 has already been recorded afore in paragraphs 40 of this judgment and what is now left is the examination of clause 8(a) and its other sub clauses. 56. However, before we began dictating on the validity of clause 8(a) of the impugned Policy, Sri. Sandesh Raja requested that his objections in this Court entering into such evaluation be noted. According to Sri. Sandesh Raja, except the writ petitions, from which W.A.Nos.1322/2018, 1331/2018, 1348/2018, 1430/2018 and 1593/2018 arise, in no other matters are this clause, particularly with regard to the third criterion regarding contribution, under challenge. He, predicates, rather vehemently, that this Court will not be, therefore, justified in granting any relief to any other writ petitioner/s, save those in the above mentioned ones, even if the third criterion in clause 8(a) is found ultra vires the Act. 57. Even though we hear Sri. Sandesh Raja as afore, it is certain that we have to consider the validity of the third criterion in clause 8(a) because, the same is admittedly impugned at least in one or a few writ petitions and hence our views on this will operate as conclusions in law. Therefore, once we conclude, one way or the other, on the validity of clause 8, it will inure even to those who have chosen not to challenge it expressly, since declarations of law operate in remand not in personam. The contentions of Sri. Sandesh Raja on these lines are consequently repelled. 58. We, therefore, now advance to the evaluation of the validity of the third criterion in clause 8(a) of the impugned Admission Policy.
The contentions of Sri. Sandesh Raja on these lines are consequently repelled. 58. We, therefore, now advance to the evaluation of the validity of the third criterion in clause 8(a) of the impugned Admission Policy. This criterion mandates that an 'Insured Person' would be entitled to benefits under the Policy only if he/she has effected contribution or is liable to effect contribution for 78 days in each of the contribution periods of nine or seven or five, as the case may be, immediately preceding the 1st of January, 2018. 59. As we have already recorded above, no discernible reason is seen for this criterion anywhere in the Policy or even in the pleadings of the Corporation. This criterion creates an artificial classification among the employees, for which we see no intelligible differentia. The objective of this classification is also not, in any manner, available from the Policy or the pleadings. Sri. Sandesh Raja tried to explain the objective by saying that this criterion is fixed as an incentive to those 'Insured Persons' who have continuously contributed and that there is a limited relaxation of one year for those who have been unable to contribute in the relevant period for no fault of theirs. 60. This submission of Sri. Sandesh Raja, in our view, further demonstrates why this criterion is bad. Most, if not all, of the Insured persons involved in these cases did not effect the contribution continuously for the block contribution periods of nine or seven or five, not because they deliberately chose not to, but because they were statutorily impeded from doing so during the various periods from 2010 to 2017, when the maximum limit of salary was Rs.15,000/-per month. Therefore, from the rather complicated and abstruse methodology adopted in the impugned policy, it becomes apparent that the real attempt and intention of the Corporation is to confine the benefits in Group I under it only to those 'Insured Persons' whose salary never exceeded Rs.15,000/-during the block contribution periods between April 2013 and March 2016, because even if it so exceeded in April 2016, they would get the benefit of the limited relaxation of one year, and subsequently, by the 2017 amendment, they stood re-admitted to the ESI Scheme, because the maximum salary limit was enhanced to Rs.21,000/-per month.
Hence, it is indubitable that the real intent behind the third criterion in clause 8(a) is to exclude certain 'Insured Persons' solely on the consideration of their monthly salary, but without saying so expressly since the Corporation may also perhaps be aware that such a classification among the 'Insured Persons' under the Act would be contrary to its spirit. 61. Further, this artificially imposed differentiation among the 'Insured Persons' is without any objective that could be achieved, particularly because by allowing the wards of the Insured Persons to be admitted to the 'Insured Persons Quota', the corporation has no financial liability, because the entire tuition and other expenses are to be met by the ward and his/her parents. The Corporation offers no subsidy or stipend or such other pecuniary grant to any child admitted to the quota and it, therefore, suffers no financial burden by this admission process. Therefore, logically, it ought to have allowed the 'wards of Insured persons' to compete for the seats in the quota on the basis of their inter merit in the NEET, rather than by employing an exclusionary methodology, denying benefit to a category of 'Insured Persons' under the Act for no valid reason. 62. Further more, in certain very singular cases, as are presented in W.A.Nos.1457/2018, 1459/2018, 1461/2018, 1464/2018, 1467/2018, 1455/2018, 1458/2018, 1481/2018, 1482/2018, 1483/2018, 1484/2018 and 1485/2018, the misery of the employees are exacerbated by the imposition of this criterion. The employees involved therein are concededly 'Insured Persons' as defined under the Act, but since they are employed in Cashew industry, where employment is not regular or continuous, being dependent upon the availability of raw cashew from India and abroad, they would not obtain regular salary, thus making it impossible for them to make contribution for more than a few days in a month and that too much below the 78 days mandated by clause 8(a) of the Policy. The writ petitioners therein have demonstrated this fact by producing on record the returns filed by the employer, which affirms their assertions. The imposition of this criterion, therefore, operates as a double prejudice to these 'Insured persons', because neither are they able to make a proper living on account of their exiguous earnings, nor will they obtain the benefits under the impugned Policy, even when persons who earn much above them obtain it.
The imposition of this criterion, therefore, operates as a double prejudice to these 'Insured persons', because neither are they able to make a proper living on account of their exiguous earnings, nor will they obtain the benefits under the impugned Policy, even when persons who earn much above them obtain it. This one instance would sufficiently demonstrate how the Policy works inequity in specific cases, which was not even adverted to by the Corporation when they designed it. Ironically, the Policy intended to exclude higher earning employees (though not expressly stated so), in effect excludes those in the lowest categories, whose earnings are not sufficient even to satisfy the 78 days contribution in a contribution period. 63. The third criterion in clause 8(a) of the Policy is clearly, therefore, incorporated therein without sufficient thought or reflection and it violates the basic tenets of the Act and its ameliorative intents and purposes. We, therefore, have no hesitation in holding that the third criterion in clause 8(a) of the impugned Admission Policy that the 'contribution in respect of an Insured Person had been paid/payable for not less than 78 days in all the 9/7/5 contribution periods immediately preceding 1st the January of the year of admission' is contrary to the Act and hence invalid. 64. That being said, the challenge in some of the other writ petitions are against three other stipulations in clause 8 of the impugned Admission Policy, which are as under : (A) In proviso to clause 8(a) it is prescribed that the returns, showing contributions having been paid for the relevant block contributions period, should be filed by the employer as provided under Section 44 of the Act indicating thereby that if the employer defaults in filing such returns the 'Insured Person' would lose the benefits under the Policy. (B) The last limb of clause 8(a) provides that the five/four/three years Continuous Insurable employment, as the case may be, for the purposes of grouping the Insured Persons under Groups I, II and III, should be between the recorded date of Entry in the Scheme and the 1st January of the year of admission.
(B) The last limb of clause 8(a) provides that the five/four/three years Continuous Insurable employment, as the case may be, for the purposes of grouping the Insured Persons under Groups I, II and III, should be between the recorded date of Entry in the Scheme and the 1st January of the year of admission. After saying so, the Policy further expatiates in clauses 8(c), 8(d) and 8(e) that the date of entry in the Scheme is the date of registration available is the 'Insured Person' data base of the Corporation; further that the Corporation will not be responsible for the delay or default on the part of the employer in getting itself or the employees covered under the Scheme and finally that any period prior to the date of entry described above will not be counted towards the period of Continuous Insurable Employment. (C) Finally, clause 8(f) of the Policy imposes a further condition that the combined earnings of an 'Insured Person' and his/her spouse should not exceed Rs.6,00,000/-per annum. 65. As regards the stipulations in (A) above, once we have found the third criterion in clause 8(a) to be invalid, no further consideration of this is warranted because the mandatory requirement for the employer to file the returns for the Insured person to be entitled to the benefits of the Policy becomes redundant and otiose. Interestingly, however, we notice that the learned Single Judge has allowed the writ petitions assailing this stipulation, even when the third criterion in clause 8(a) was upheld by another learned Judge, concluding that the obligation to file returns is thrust upon the employer by the Act and that a consequential obligation is cast upon the competent officers of the Corporation to ensure such filing of returns, including by imposing penalties and damages against the employer. The learned Single Judge, therefore, concluded that the proviso to clause 8(a), which attempts to shift the burden to the employee, is illegal and that it amounts to an abdication of duties by the officers of the Corporation. For the reason that this issue does not survive after our view on clause 8(a), we say no more than that we are in complete affirmation of the views and holdings of the learned Judge on the legal obligations of the employer and the Corporation when it comes to filing of returns under Section 44 of the Act. 66.
For the reason that this issue does not survive after our view on clause 8(a), we say no more than that we are in complete affirmation of the views and holdings of the learned Judge on the legal obligations of the employer and the Corporation when it comes to filing of returns under Section 44 of the Act. 66. Moving on, the restrictive nature of stipulations in (B) and (C) above also do not appeal to us for the following reasons. 67. As regards the Date of Entry is concerned, Sri. Sandesh Raja submits that the benefits under the impugned Policy has been confined only to those employees who are registered under the ESI Scheme as per the Act, Rules and Regulations and that the decision to confine benefits only from the date of registration of the employees, in the Insured Persons database, is intended to avert chances of the Policy being abused by unscrupulous employers and employees. He says that several instances have been brought to the notice of the Corporation where employers have registered their employees to show a pre-dated entry into employment. 68. He explains that the Corporation has even noticed cases where employers have filed registration and returns, to bring their employees into the ambit of the ESI Scheme, 5 or 6 years later than they were allegedly admitted to the employment and have paid the contribution for such period. Sri. Sandesh Raja submits that the Corporation feels that such instances have to be curbed and that it is for doing so that the date of entry is specified as the threshold for the 'Insured Persons' to obtain the benefits under the Policy. 69. We have scanned the Act quite in detail to see if the submissions of Sri. Sandesh Raja can find statutory support. It is clear from the various provisions of the Statute that no where therein does it mandate that the benefits to an employee or an Insured Person will begin only from that date on which their name is registered in the Insured Persons' data base maintained by the Corporation. 70. In fact, Section 38 of the Act provides that all employees to whom the Act applies shall be insured in the manner provided by the Act.
70. In fact, Section 38 of the Act provides that all employees to whom the Act applies shall be insured in the manner provided by the Act. After saying so, in Section 39, the Act makes it mandatory on the employer to pay the contribution and further, under sub-section 5(a) of the said Section, if there is any default by the principle employer in making such contribution, such employer has been made liable to pay interest at the rate of 12% per annum. Moving forward, under Section 40, the obligation to make the contribution, at the first instance, has been on the principle employer and he has also to bear the expenses for remitting such contributions to the Corporation. Thereafter, in Section 44, provisions are made for the employers to furnish returns and maintain registers and this has been shown as their statutory obligation without any concomitant burden being cast upon the employee. 71. In order to ensure compliance of the afore provisions, Social Security Officers are provided for under Section 45, who have been invested with far reaching powers. These Officers have the power to inquire into the correctness of the particulars stated in the returns referred to Section 44 and for such purpose, they are granted the power to obtain from the employers all information as are necessary; to enter into any office, establishment or factory to verify these factual inputs; and to examine any matter relevant to the purposes aforesaid, including to take extracts from any register, account book or other document maintained in such factory, establishment, office or other premises. 72. The sum total of these provisions take it beyond any doubt that the burden of filing returns and of consequently registering the employees is fully on the employer. This fact becomes more fortified by the way Section 41 of the Act is drafted, wherein a principle employer is declared entitled to recover the amount of contribution from the immediate employer, either by deduction from any amount payable to him by the principle employer or as a debt payable by the immediate employer. It is thus limpid that such large powers are statutorily invested with the Social Security Officers to ensure that the returns and declarations made by the employers are true to facts, credible and not contrary to the declared information. 73. Taking cognizance of this statutory frame work, the submissions of Sri.
It is thus limpid that such large powers are statutorily invested with the Social Security Officers to ensure that the returns and declarations made by the employers are true to facts, credible and not contrary to the declared information. 73. Taking cognizance of this statutory frame work, the submissions of Sri. Sandesh Raja regarding the last limb of clause 8(a) and the provisions of clauses 8(c), 8(d) and 8(e), which postulate that the date of entry into the Scheme alone is relevant, do not appear to be juridically credible or sustainable. Here again, we find that the attempt of the Corporation is to shift the burden from the employer, as also from the competent authority of the Corporation to the employee, to ensure that their registration is done as soon as they are admitted into employment. Since the Statute does not enjoin any burden on the employee in having his registration done as per law, with all such burden being cast upon the employer and the supervisory obligation to ensure this being vested with the competent Authorities of the Act, we fail to understand what purpose is sought to be achieved by the Corporation in maintaining that the date of entry into their data base is the relevant date for an Insured Person to obtain the benefits under the Act. We, therefore, are compelled, seeing absolutely no reason for this particular provision, to hold that the same is contrary to the scheme and intent of the Statute, it being an artificial threshold, created without the authority and sanction of the Act. 74. That finally takes us to the question regarding the validity of clause 8(f) of the Annexure to the impugned Admission Policy. As per this clause, the ward of an Insured Person becomes disentitled to the benefits under the impugned Policy if the combined annual income of his parents is over Rs.6,00,000/-. As is evident from the way this clause is worded, if the spouse of an Insured Person earns a higher salary, so as to take their combined earnings over Rs.6,00,000/-per annum, the Insured Person loses all benefits under the Policy. This again creates a further classification among Insured Persons based on the earning capacity of their spouses. Since this classification certainly requires the support of an intelligible differentia to sustain it, we asked Sri. Sandesh Raja his specific assertions on this issue.
This again creates a further classification among Insured Persons based on the earning capacity of their spouses. Since this classification certainly requires the support of an intelligible differentia to sustain it, we asked Sri. Sandesh Raja his specific assertions on this issue. The learned standing counsel submits in tune with the counter affidavit filed by the Corporation that this provision has been incorporated in the Admission Policy “because preferential admissions for the wards of parents whose combined incomes are so high would be violative of the spirit of the provisions of the Act itself”. Even though we hear Sri. Sandesh Raja as afore, the fact remains that the Statute does not create any such classification. The Act does not say that an Insured Person whose husband or the wife, as the case may be, draws a high salary, making their combined annual income over 6 lakhs would be deprived of the benefits under the ESI Scheme or the Act. When an Insured Person, notwithstanding the high income of his/her spouse continues to obtain all the benefits under the Scheme and the Act, we cannot understand the rationale in the Corporation stipulating that for the purpose of admission of their ward, a combined higher income is fatal. This is again a situation where, we find no differentia at all in the classification that is sought to be made and we fail to comprehend the objective, if any, which the Corporation intends to achieve. To say that an Insured Person loses all benefits under the Policy merely because his/her spouse earns a higher salary suggests that the success of this spouse operates as a detriment to take away even the minimum benefits under the Policy. We, therefore, hold that clause 8(f), being in dissonance with the purposes of the Act, is ultra vires its provisions and is, therefore, incapable of being sustained. 75.
We, therefore, hold that clause 8(f), being in dissonance with the purposes of the Act, is ultra vires its provisions and is, therefore, incapable of being sustained. 75. In summation of the above and to enable a quick reference to our observations contained in this judgment, we encapsulate our holdings in this judgment as under : (a) The definition of the phrase 'Continuous Insurable Employment' as obtained in clause 4.5 of the Annexure to the impugned Admission Policy will be as per Section 2(13A) of the Act and as a corollary consequence, the definitions of the three groups, namely Groups I, II and III in the said clause shall be reassigned to mean as having 5, 4 and 3 years Continuous Insurable Employment immediately preceding the 1st of January of the year of admission. (b) The third criterion in clause 8(a) of the Annexure to the Admission Policy, namely that the contribution in respect of an Insured Person ought to have been paid or payable for not less than 78 days in all the 9 or 7 or 5 contribution periods immediately preceding the 1st January of the year of admission, is declared being contrary to the provisions of the Act and therefore, would stand set aside. (c) The proviso to clause 8(a) and clause 8(d) of the Annexure to the Admission Policy, which mandates that the failure of the employer to file the returns of contribution would disentitle the benefits to the Insured Person under the Admission Policy would, as a corollary to the above, also stand set aside. (d) The reference to the date of entry, in the last limb of clause 8(a) and clause 8(c), would mean the date from which the employees are admitted to the benefits under the ESI Scheme, with liberty being reserved to the Corporation to verify it in terms of law and to deny the benefit in case of proven and established misrepresentation and misinformation. (e) The provisions of clause 8(f) of the Annexure to the Admission Policy, being repugnant to the very intended purpose of the Act, would stand set aside. In the result, the writ appeals filed by the parties would stand allowed, to the extent to which the reliefs have been prayed for by them and consequently, the writ appeals filed by the Corporation would stand dismissed.
In the result, the writ appeals filed by the parties would stand allowed, to the extent to which the reliefs have been prayed for by them and consequently, the writ appeals filed by the Corporation would stand dismissed. Since we have set aside the above mentioned clauses of the Admission Policy in the manner afore, the wards of the eligible Insured Persons involved in these appeals will be entitled to approach the competent Authority of the Corporation and obtain the 'Ward of Insured Persons Certificate' in terms of the observations in this judgment and the Corporation will issue the same to them without any delay de hors to the clauses that have been set aside by us in this judgment. We urge the Corporation to issue the certificate at the earliest but not later than 14th August, 2018, since the learned Assistant Solicitor General, appearing for the Director General of Health Services informs us that the dates for the final mop-up counselling is now rescheduled to commence from 16th August, 2018. Even though we have ordered these appeals as above, we are cognizant that the admission procedure to the various Medical Colleges and Institutions, under the aegis of the Director General of Health Services, has already commenced and that even the second round of allotment may now be complete. We do not propose to disturb such allotments or such process in any manner on account of the directions contained in this judgment. Therefore, if any of the appellants herein had been allotted seats on the strength of interim orders granted herein, such allotment will stand undisturbed. All the rest of the seats which were directed to be kept unfilled by the various interim orders of this Court in the writ appeals will revert to the mop-up counselling process so that all the writ petitioners/appellants would be entitled to compete for admission, based on inter se merit in the NEET examination. We reiterate that any action taken by the Director General of Health Services, Government of India prior to this judgment will remain unaffected by the directions herein.